Citation Nr: 1017361
Decision Date: 05/11/10 Archive Date: 05/26/10
DOCKET NO. 09-02 232 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for a bilateral knee
disability.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Counsel
INTRODUCTION
The Veteran served on active duty from April 1955 to April
1959, February 1960 to April 1964, and from June 1964 to
December 1981.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 2007 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO)
above.
FINDING OF FACT
The competent and probative evidence of record preponderates
against a finding that the Veteran currently has a bilateral
knee disability that is due to any incident or event in
active military service, and arthritis is not shown to have
been manifested within one year after separation from
service.
CONCLUSION OF LAW
A bilateral knee disability was not incurred in or aggravated
by active service, nor may arthritis be presumed to have been
incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304
(2009). Where there is a chronic disease shown as such in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b). When a condition noted during
service is not shown to be chronic, or the fact of chronicity
in service is not adequately supported, then a showing of
continuity of symptomatology after discharge is required to
support the claim. Id.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R.
§ 3.303(d).
In addition, the law provides that, where a veteran served
ninety days or more of active military service, and certain
chronic diseases, including arthritis, become manifest to a
degree of 10 percent or more within one year after the date
of separation from such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307,
3.309(a).
The Court has held that, in order to prevail on the issue of
service connection, there must be (1) medical evidence of a
current disability; (2) medical, or in certain circumstances,
lay evidence of incurrence or aggravation of a disease or
injury in service; and (3) medical evidence of a nexus
between the claimed in-service injury or disease and the
current disability. Hickson v. West, 12 Vet. App. 247, 252
(1999). Depending on the evidence and contentions of record
in a particular case, lay evidence can be competent and
sufficient to establish a diagnosis of a condition. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The Veteran has asserted that service connection is warranted
because he believes his current bilateral knee disability is
related to his 13 years of duty, which involved climbing
ladders on a daily basis.
The service treatment records do not contain any complaints,
treatment, or findings related to a bilateral knee
disability. While the Veteran has asserted that his current
knee disability is related to service, the Board notes he has
not provided any evidence or information about when his knee
symptoms began or when he first sought treatment for his
bilateral knee disability.
While the Board does not dispute the fact that the Veteran
climbed many ladders on a daily basis in the service, the
first time the Veteran is shown to have knee problems is in
January 2004, which is more than 20 years after he was
separated from service. The physician who examined the
Veteran at the time noted that the Veteran had a longstanding
history of bilateral knee pain; however, there is no
indication as to when his pain began or what caused the onset
of pain. The examining physician did note that the Veteran
had been involved in a motor vehicle accident 5 months
before, which seemed to exacerbate his knee pain and cause
swelling. X-rays of the Veteran's knees revealed severe
medial compartment arthrosis, left worse than right; however,
there was no indication from the Veteran or the examining
physician that the Veteran's bilateral knee arthrosis began
in service or was otherwise related thereto a problem 20
years earlier.
In fact, the evidentiary record contains private medical
records dated from January 2004 to December 2007, which
document the Veteran's complaints and treatment for bilateral
knee pain. However, the treatment records are generally
negative for any indication as to the cause or date of onset
of the Veteran's bilateral knee pain. While the cause or
date of onset is not reflected in the record, the Board does
note that, in addition to the motor vehicle accident noted in
January 2004, a December 2006 treatment record reflects that
the Veteran injured his right knee after stepping in a hole.
The Board again notes that there is no indication that the
Veteran's bilateral knee condition began or is otherwise
related to his military service. These post-service injuries
only provide factual evidence against this claim.
In November 2007, the Veteran was afforded a VA examination
to determine the etiology of his bilateral knee disability.
While the Veteran reported that he developed arthritis in
both knees as a result of his naval service, he also reported
that he did not receive treatment for his knees in service.
The examiner noted that the Veteran had left knee total
replacement in 2005, which relieved his left knee pain, but
that he continues to have pain in his right knee. The final
diagnosis was degenerative joint disease of both knees,
status post total knee replacement on the left, which was
confirmed by X-ray.
As to the etiology of the Veteran's bilateral knee
disability, the examiner stated that he could not say,
without resorting to mere speculation, whether or not the
Veteran's knee condition is related to military service, as
there were no entries in his record indicating knee problems.
Nevertheless, in December 2008, one of the Veteran's treating
physicians, Dr. A.C.H., opined that he thinks there is a
relationship between the Veteran's years of service and the
arthritic condition in his knees, as he thinks the Veteran's
knees have had a combination of injury sustained through 27
years of military service. See December 2008 private
treatment record.
While the December 2008 treatment record is considered
competent medical evidence, the Board ascribes lessened
probative value to the opinion provided by Dr. A.C.H. because
he did not provide a rationale in support of his conclusion.
Dr. A.C.H. did not state what lay or medical evidence of
record shows that the Veteran sustained an injury to his
knees during service; nor did he identify the facts in this
case which support a conclusion that the Veteran's current
bilateral knee disability is related to service, given the
lack of lay or medical evidence showing when the Veteran's
knee problems began or what caused the onset of his knee
problems. Because Dr. A.C.H. did not address all relevant
facts in this case or provide a rationale in support of his
conclusion, the Board ascribes lessened probative value to
the medical opinion provided in December 2008 and finds that
the medical opinion is in sufficient to support a claim of
service connection.
In evaluating the ultimate merit of this claim, the Board
finds probative that, while the Veteran believes his current
bilateral knee disability is related to service, the Veteran
has not indicated when his symptoms began or what
precipitated his bilateral knee pain. In addition, the
Veteran has not provided or identified any lay or medical
evidence that shows complaints or treatment for a bilateral
knee disability during service or for more than 20 years
thereafter. This gap of many years in the record militates
against a finding that he suffered a chronic disability in
service and also rebuts any assertion of continuity of
symptomatology since separation from service. See 38 C.F.R.
§ 3.303(b); see also Maxson v. West, 12 Vet. App. 453 (1999),
aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that
service incurrence may be rebutted by the absence of medical
treatment for the claimed condition for many years after
service).
Moreover, there is no probative medical opinion of record
that relates his current bilateral knee disability to
service. As noted, the medical opinion provided by Dr.
A.C.H. is considered less-than-probative as to whether there
is an etiologic relationship between the Veteran's current
disability and military service, and the November 2007 VA
examiner was unable to provide a medical nexus opinion,
without resort to speculation due to the lack of evidence
showing knee problems during service. Given the lack of lay
or medical evidence showing complaints or treatment for a
bilateral knee disability during service or for many years
thereafter, the Board finds it would not be beneficial to
attempt to obtain another medical opinion.
Therefore, after carefully considering the evidence in
support of and against the claim, the Board finds the
preponderance of the evidence is against the grant of service
connection for a bilateral knee disability. There is no lay
or medical evidence of complaints or treatment for a knee
problem during service or for 20 years thereafter and
indications of injuries well after service. The Board has
considered the Veteran's statements as to why he believes his
bilateral knee disability is related to service; however, the
Veteran is not competent to provide evidence regarding
medical causation or etiology, given the complex nature of
these issues in this case. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
Service connection is not warranted on a presumptive basis in
this case because, while the Veteran has been diagnosed with
bilateral knee arthritis, there is no indication that he was
diagnosed with arthritis within his first post-service year.
See 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307,
3.309(a). In this regard, the Board again notes that the
Veteran is not shown to have a bilateral knee problem, or
diagnosed with arthritis, until more than 20 years after
service.
Therefore, the Board finds the preponderance of the evidence
is against the Veteran's claims of service condition for a
bilateral knee disability, and the benefit-of-the-doubt
doctrine is not for application. See Gilbert v. Derwinski, 1
Vet. App. 49, 55 (1990).
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating
their claims for VA benefits, as codified in pertinent part
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009);
38 C.F.R. § 3.159, 3.326(a) (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. 38 C.F.R. §
3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30,
2008). This notice must be provided prior to an initial
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, if VCAA notice is provided after the initial
decision, such a timing error can be cured by subsequent
readjudication of the claim, as in a Statement of the Case
(SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006).
The VCAA notice requirements apply to all five elements of a
service connection claim: (1) veteran status; (2) existence
of disability; (3) connection between service and the
disability; (4) degree of disability; and (5) effective date
of benefits where a claim is granted. Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
The U.S. Court of Appeals for the Federal Circuit previously
held that any error in VCAA notice should be presumed
prejudicial, and that VA must bear the burden of proving that
such an error did not cause harm. Sanders v. Nicholson, 487
F.3d 881 (2007). However, the U.S. Supreme Court has
recently reversed that decision, finding it unlawful in light
of 38 U.S.C.A. § 7261(b)(2), which provides that, in
conducting review of decision of the Board, a court shall
take due account of rule of prejudicial error. The Supreme
Court in essence held that - except for cases in which VA has
failed to meet the first requirement of 38 C.F.R. § 3.159(b)
by not informing the claimant of the information and evidence
necessary to substantiate the claim - the burden of proving
harmful error must rest with the party raising the issue, the
Federal Circuit's presumption of prejudicial error imposed an
unreasonable evidentiary burden upon VA and encouraged abuse
of the judicial process, and determinations on the issue of
harmless error should be made on a case-by-case basis.
Shinseki v. Sanders, 129 U.S. 1696 (2009).
In this case, the VCAA duty to notify was satisfied by way of
a letter sent to the Veteran in May 2007 that fully addressed
all required notice elements and was sent prior to the
initial AOJ decision in this matter. The letter informed the
Veteran of what evidence was required to substantiate his
claim and of the Veteran's and VA's respective duties for
obtaining evidence. The May 2007 letter also informed the
Veteran of how disability ratings and effective dates are
assigned. See Dingess v. Nicholson, supra. Thus, the Board
concludes that all required notice has been given to the
Veteran.
The Board also finds VA has satisfied its duty to assist the
Veteran in the development of the claim. The RO has obtained
the Veteran's service treatment records and medical records
from his private physicians, dated from January 2004 to
December 2007. In this regard, it appears that all
obtainable evidence identified by the Veteran relative to his
claim has been obtained and associated with the claims file,
and that neither he nor his representative has identified any
other pertinent evidence, not already of record, which would
need to be obtained for a fair disposition of this appeal.
In addition, the Veteran was afforded a VA examination in
November 2007, which was adequate to evaluate the Veteran's
current disability. Indeed, the November 2007 VA examiner
reviewed the claims file, examined the Veteran, and provided
a medical opinion with rationale in support thereof.
It is therefore the Board's conclusion that no further notice
or assistance to the Veteran is required to fulfill VA's duty
to assist the Veteran in the development of the claim. Smith
v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Accordingly, the Board finds that VA has satisfied its duty
to assist the Veteran in apprising him as to the evidence
needed, and in obtaining evidence pertinent to his claim
under the VCAA.
ORDER
Service connection for a bilateral knee disability is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs